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HomeMy WebLinkAbout01-3090MICHAEL MCCLURKIN and : IN THE COURT OF COMMON PLEAS WII.I.IAM C. SHADOW, Il, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : : v. CIVIL ACTION - LAW JOSEPH O. KALWAY'rlS and NO. 01-3090 RENEE E. KALWAYTIS, his wife, d/b/a KALWAYCO, : JURY TRIAL DEMANDED Defendants. : PRAECIPE TO ENTER JUDGMENT BY DEFAULT TO THE PROTHONOTARY: Please enter judgment of default in favor of plaintiffs Michael McClurkin and William C. Shadow, II and against Defendants Joseph O. Kalwaytis, Renee E. Kalwaytis and Kalwayco, for failure to plead to the complaint in this action within the required time. The complaint contains a notice to defend within 20 days from the date of service thereof. Defendant Joseph O. Kaiwaytis was served with the complaint on May 24, 2001 and defendant's answer was due to be filed on June 13, 2001. Defendant Renee E. Kalwaytis was served with the complaint on May 30, 2001 and defendant's answer was due on June 19, 2001. Defendant Kalwayco was served with the complaint on May 30, 2001 and defendant's answer was due on June 19, 2001. Attached as Exhibit "A" is a copy of plaintiff's written Notice of Intention to File Praecipe for Entry of Default Judgment, which I certify was mailed by certified mail, return receipt requested, on June 14, 2001 to the defendant at his last known address and was received by Joseph O. Kaiwaytis on June 18, 2001, which is at least 10 days prior to the filing of this Praecipe. Attached as Exhibit "B" is a copy of plaintiff's written Notice of Intention to File Praecipe for Entry of Default Judgment, which I certify was mailed by certified mail, return receipt requested, on June 21, 2001 to defendant Renee E. Kaiwaytis at her last known address, which is at least 10 days prior to the filing of this Praecipe. Attached as Exhibit "C" is a copy of plaintiff's written Notice of Intention to File Pmecipe for Entry of Default Judgment, which I certify was mailed by certified mail, return receipt requested, on ~'uly 17, 2001 to defendant Kalwayco at their last known address, which is at least 10 days prior to the filing of this Praecipe. Please enter judgment against defendants Joseph O. Kalwaytis, Renee E. Kalwaytis and Kaiwayco in the amount of Fifty Six Thousand Three Hundred Thirty Five Dollm's and Twelve Cents ~($56,335.12), Forty Eight Thousand Three Hundred Thirty Five Dollars and Twelve Cents ($48,335.12) plus statutory interest at the rate of six percent (6%) per annum, attorneys' fees, and costs, in favor of plaintiff William C. Shadow, H, and Eight Thousand Dollars ($8,000.00) plus statutory interest at the rate of six percent (6%) per annum, attorneys' fees, and costs, in favor of plaintiff Michael McClurkin. James J. Kutz, Esq. w~- ~ ,~ Attorney I.D. No. 21S89 V ~ Robert A. Quigley, Esq. ~' Attorney I.D. No. 79186 DUANE, MORRIS & H~CKSCH~R LLP 305 North Front Street, Su~ Floor P.O. Box 1003 Harrisburg, PA 17108-1003 (717) 237-5500 Attorneys for Plaintiffs Dated: July 31, 2001 EXHIBIT A MICHAEL MCCLURKIN and : IN THE COURT OF COMMON PLEAS WILLIAM C. SHADOW, II, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : : v. : CIVIL ACTION - LAW : JOSEPH O. KALWAYTIS and : NO. 01-3090 RENEE E. KALWAYTIS, his wife, : d/b/a KALWAYCO, : JURY TRIAL DEMANDED Defendants. : IMPORTANT NOTICE TO: Joseph O. Kalwaytls Federal Prison Camp - Allenwood P.O. Box 1000 Montgomery, PA 177S2 Defendant DATE OF NOTICE: June 14, 2001 YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAKE ACTION REQUIRED OF YOU IN THIS CASE. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING, AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE S ET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 717-249-3166 800-990-9108 R6bert ~,. Quigiey, Esq~irg/] Attorney ID No. 79186 [ ] DUANE, MORRIS & HE~KS~ -IER LLP 305 North Front Street P.O. Box 1003 Harrisburg, PA 17108-1003 (717) 237-5514 Attorneys for Plaintiff · ' ' " ...... ;'=~ ~' ~ 4 If Rest~cted Delivery ~s desired. · Pflnt your name end acldre~ on the reverse ..... '.';"~-~'~: · Attach tNs can:l to the back of the mallpiece, D. is dMive~y ~lr~ d-n~t~ent from item 17 r'l ye~ }0 Box 1000 ~Ont!~cxne._--~, PA 17752 ....:......:.-...--'- 3. Sen4ceType : . ..;. :.......... ~1'~ MMI [3 F_xp~'e~ M~ .~' ..... - .... I [] 0.0.~. EXHIBIT B MICHAEL MCCLURKIN and : IN THE COURT OF COMMON PLEAS WILLIAM C. SHADOW, H, : CUMBERLAND COUNTY, PEI~NSYLVANIA Plaintiffs : . v. : CIVIL ACTION - LAW : JOSEPH O. KALWAYTIS and : NO. 01-3090 RE.NEE E. KALWAYTIS, his wife, : d/b/a KALWAYCO, : JURY TRIAL DEMANDED Defendants. : IMPORTANT NOTICE TO: Renee E. Knlwaytis 2473 Stutzmantown Road Somerset, PA 15501 Defendant DATE OF NOTICE: June 21, 2001 YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAKE ACTION REQUIRED OF YOU IN THIS CASE. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING, AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 717-249-3166 800-990-9108 R~b~rt A. Quigley, Esquin Attorney ID No. 79 ! 86 DUANE, MORRIS & HEC] SCHER LLP 305 North Front Street P.O. Box 1003 Harrisburg, PA 17108-1003 (717) 237-5514 Attorneys for Plaintiff EXHIBIT C MICHAEL MCCLURKIN and : IN THE COURT OF COMMON PLEAS Wll LIAM C. SHADOW, Il, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : : v. : CIVIL ACTION - LAW : JOSEPH O. KALWAYTIS and : NO. 01-3090 RENEE E. KALWAYTIS, his wife, : dfo/a KALWAYCO, : JURY TRIAL DEMANDED Defendants. : IMPORTANT NOTICE TO: Kalwayco c/o Renee E. Kalwaytis 2473 Stutzmantown Road Somerset, PA 15501 Defendant DATE OF NOTICE: July 17, 2001 YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAKE ACTION REQUIRED OF YOU IN THIS CASE. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING, AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 717-249-3166 800-990-9108 DUANE, MORRIS & HECKS~ IER LLP 305 North Front Street P.O. Box 1003 Harrisburg, PA 17108-1003 (717) 237-5514 Attorneys for Plaintiff ru $~,, ro Kalwayco mm t....~/.Q.l?~nee..F-....Ka.lwayt, iSs,~,. ~,. ~. .................................... /o,~a~No. 2473 Stutzmantown lqoad .................................. 1 P~on~ly ~p~ ~fo~ me ~ ~' ~ · ~ty for CA~ W. BRO~, Sh~ff of So~t Count, P~nsyl~i~ who ~g duly sworn ~o~ing ~ law, ~s ~ ~y ~ on ~e ~A ~yof ~.ff 20~ at~Mhe se~ ~ a~ve ~ pemon ~ follow~ ~ ~ Se~ice on ~son ~ M~ling to ~on at a~vc ~mss; eviden~ of ~Hng a~h~ ~ Adult ~m~r of the ~on's household N~e Relationship ~lt ~ ch~e of ~rson's ~idence N~e ~iafionship ~Agent or ~n at ~e time and pl~ in c~c of ~ ~on's offi~ usu~ pl~ of busme~ ~ Rela~on~ip ~ ~ M~er~le~ at ~e p~e of lodging in which ~n ~si~s - ~Oth~ N~ ~tle ~ Pos~ most ~blic p~ of~ise sim~e of co.or, on at ~ ~si~nce, ~usines~, ~ ~mpio~mt, ~ ~, of ~on ~ ~ se~ed, at ~~ contents thereof. PE~ON NOT FOUND BECAUSE: - New ~d~ss [-~ Other Sworn and subscribed bcf. me this !~ ~.b day of , ~e.~ A I, 2.0o f v- -- HERIFF SOMERSET C'OUNTY, PA CASE NO: 2001-03090 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MCCLURKIN MICHAEL ET AL VS KALWAYTIS JOSEPH O ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: KALWAYCO but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of SOMERSET County, Pennsylvania, to serve the within COMPLAINT & NOTICE On July 20th , 2001 , this office was in receipt of the attached return from SOMERSET Sheriff's Costs: So ans~w~s: Docketing 6.00 Out of County .00 Surcharge 10.00 R. ~homas Kline .00 Sheriff of Cu~erland County .00 16.00 07/20/2001 DU~E MORRIS & HEC~ER Sworn and subscribed to before me this day of A.D. Prothonotary In The Court of Common Pleas of Cumberland County, Pennsylvania Michael McClurkin and William Shadow II VS. Kalwayco No. 2001 3090 civi~ Now, M~_v 2a ,20 01, I, SHER/FF OF CUMBERL.~qD COUNTY, PA, do hereby deputize the Sheriff of Somerset County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, ., 20 , at o'clock __ M. served the within upon at by handing to a copy of the original and made known to the contents thereof. So answers, Sheriff of County. PA COSTS Sworn and subscribed before SERV1CE $ me this __ day of ., 20 M1LEAGE AFFIDAVIT $ I D0cket Number ~co, _ ~. o ~ c: ] SHERIFF'S RETURN Per~onnllyappeamdbefomme ,~r~/o( ~. ~ nd~tyforCA~ W. BRO~,' Sh~ of So~net Count, P~nsylv~i~ who ~g du~ sworn atoning to law, ~p~ ~d my~ on ~ s~ ~ ~ve ~ pc~on ~ foll0~s: ~ ,Se~icc on ~on ~ M~l~g to ~rmn ~ ~vc ~d~ss; evidence of m~ng ~ch~ ~ Adult ~r of the ~'s houschoM N~ Relationship ~ult ~ ch~e of ~rson's ~sidence N~ Relationship ~ Agem or pc~n at the time and pi~ in c~gc of ~e ~on's o~ or usual pl~e of b~iness Relationship ~ M~ag~lerk at ~e pl~e of l~ging in which ~on ~si~s - Name ~ Nme Title ~ Pos~ m~blic p~ of pm~ sima~ of co~ion · t e p o nt. ~ ~0~ ~[ ~ORO ~d m~ng ~o~ to such ~r~ ~ con.nfs thereof. ~N NOT ~D BECAUSE: - New ~dmss Sworn and subscribed before me this z~.~..~_~.~.~ day of · ft ~ ~ ~ ~ 20z>! DEPI~rY SHERIFF SOMERSET C'OUNTY, PA No~.Sea t Costs kle~ma ,~. TrUSC=II. Notary Public Som~msa B:or.~ 5ome~e: r_~unly t'~c~ I~w. paan~l,~n~ M~c~m d Nots~m ~-I:Y-O I .:~.~ cot.o ~i ..~.0.5'.2 SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2001-03090 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MCCLURKIN MICHAEL ET AL VS KALWAYTIS JOSEPH 0 ET A3~ R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: KALWAYTIS RENEE E but was unable to locate Her in his bailiwick. He therefore deputized the sheriff of SOMERSET County, Pennsylvania, to serve the within COMPLAINT & NOTICE On July 20th , 2001 , this office was in receipt of the attached return from SOMERSET Sheriff's Costs: So answers: Out of County .00 Surcharge 10.00 R. IThomas Kline .00 Sheriff of Cumberland County .00 16.00 07/20/2001 DUkNE MORRIS & HECKLER Sworn and subscribed to before me this day of A.D. Prothonotary In The Court of Common Pleas of Cumberland County, Pennsylvania Michael McClurkin and William Shadow II VS. Renee E. Kalwaytis No. 2001 3090 civil Now, May 23 ,20 01 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Somerset County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland CounW, PA Affidavit of Service Now, ., 20__, at o'clock __ M. served the within upon at by handing to a copy of the ori~nal and made known to the contents t~hereof. So answers~ Sheriff of County, PA COSTS Sworn and subscribed before SERVICE $ me this day of : 20__ MILEAGE AFFIDAVIT $ MICHAF. L MCCLURKIN and : IN THE COURT OF COMMON PLEAS Wn.T.IAM C. SHADOW, II, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : : v. : CIVIL ACTION - LAW : JOSEPH O. KALWAYT[S and : NO. 01-3090 RENEE E. KALWAYTIS, his wife, : d/b/a KALWAYCO, : JURY TRIAL DEMANDED Defendants. : NOTICE TO: JOSEPH O. KALWAYTIS, Defendant You are hereby notified that on August ,~ ,2001, JUDGMENT in the amount of Fifty Six Thousand Three Hundred Thirty Five Dollars and Twelve Cents ($56,335.12): Forty Eight Thousand Three Hundred Thirty Fi ve Dollars and Twel ye Cents ($48,335.12) plus statutory interest at the rate of six percent (6%) per annum, attorneys' fees, and costs, in favor of plaintiff William C. Shadow, 11, and Eight Thousand Dollars ($8,000.00) plus statutory interest at the rate of six percent (6%) per annum, attorneys' fees, and costs, in favor of plaintiffMichael McClurkin has been entered against you in the above-captioned case: Judgment by default. blo, Da~e ' I hereby certify that the name and address of the proper person to receive this Notice is: JOSEPH O. KALWAYTIS Federal Prison Camp - Allenwood P.O. Box 1000 Montgomery, PA 17752 M/CHAEL MCCLURKIN and : IN THE COURT OF COMMON PLEAS WII.L~AM C. SHADOW, II, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : : v. : CIVIL ACTION - LAW : JOSEPH O. KALWAYTIS and : NO. 01-3090 RENEE E. KALWAYTIS, his wife, : d/b/a KALWAYCO, : JURY TRIAL DEMANDED Defendants. : TO: RENEE E. KALWAYTIS, Defendant You are hereby notified that on August ~.~ ,2001, JUDGMENT in the amount of Fifty Six Thousand Three Hundred Thirty Five Dollars and Twelve Cents ($56,335.12): Forty Eight Thousand Three Hundred Thirty Five Dollars and Twelve Cents ($48,335.12) plus statutory interest at the rate of six percent (6%) per annum, attorneys' fees, and costs, in favor of plaintiff William C. Shadow, II, and Eight Thousand Dollars ($8,000.00) plus statutory interest at the rate of six percent (6%) per annum, attorneys' fees, and costs, in favor of plaintiff Michanl McClurldn has been entered against you in the above-captioned case: Judgment by Default. Date I t Prothonotary I hereby certify that the name and address of the proper person to receive this Notice is: RENEE E. KALWAYTIS 2473 Stutzmantown Road Somerset, PA 1:5501 MICHAEL MCCLURKIN and : IN THE COURT OF COMMON PLEAS Wa .I .lAM C. SHADOW, II, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : : v. : CIVIL ACTION - LAW : JOSEPH O. KALWAYTIS and : NO. 01-3090 RENEE E. KALWAYTIS, his wife, : d/b/a KALWAYCO, : JURY TRIAL DEMANDED Defendants. : TO: KALWAYCO, Defendant You are hereby notified that on August ~ ,2001, JUDGMENT in the amount of Fifiy Six Thousand Three Hundred Thirty Five Dollars and Twelve Cents ($56,335.12): Forty Eight Thousand Three Hundred Thirty Five Dollars and Twelve Cents ($48,335.12) plus statutory interest at the rate of six percent (6%) per annum, attorneys' fees, and costs, in favor of plaintiff William C. Shadow, I~, and Eight Thousand Dollars ($8,000.00) plus statutory interest at the rate of six percent (6%) per annum, attorneys' fees, and costs, in favor of plaintiff Michael McClurkin has been entered against you in the above-captioned case: Judgment by Default. I hereby certify that the name and address of the proper person to receive this Notice is: KALWAYCO C/O Renee E. Kalwaytis 2473 Stutzmantown Road Somerset, PA 15501 MICHAEL MCCLURKIN and : IN THE COURT OF COMMON PLEAS Wn I .IAM C. SHADOW, H, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : : v. : CIVIL ACTION - LAW : JOSEPH O. KALWAYTIS and : NO. 0/- _~o RENEE E. KALWAYTIS, his wife, : d/b/a KALWAYCO, : JURY TRIAL DEMANDED Defendants. : NOTICE TO DEFEND You have been sued in court, ff you wish to defend against the claims set forth in the following pages, you must rake action within twenty (20) days after this Complaint and Notice are served, by entering a writ~n appearance personally or by an attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other fights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 717-249-3166 800-990-9108 MICHAEL MCCLURKIN and : IN THE COURT OF COMMON PLEAS WILLIAM C. SHADOW, II, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : : v. : CIVIL ACTION - LAW : JOSEPH O. KALWAYTIS and : NO. RENEE E. KALWAYTIS, his wife, : d/b/a KALWAYCO, : JURY TRIAL DEMANDED Defendants. : NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia eserita o en persona o pot abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tow_ara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y per cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus porpiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAOO IMMEDIATAMENTE. SI NO TIENE ABOOADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIOUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 717-249-3166 800-990-9108 MICHAEL MCCLURKIN and : IN THE COURT OF COMMON PLEAS Wn .!.lAM C. SHADOW, II, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : : v. : CIVIL ACTION - LAW : JOSEPH O. KALWAYTIS and : NO. e) / - .5o~?o ~ "f-~.._ RENEE E. KALWAYTIS, his wife, : d/bls KALWAYCO, : ,IURY TRIAL DEMANDED Defendants. : COMPLAINT NOW COMES, Plaintiffs Michael McClurkin and William C. Shadow, ri', by and through their attorneys, Duane, Morris & Heckscher LLP, and files this Complaint against the above-named Defendants and in support thereof states as follows: 1. Plaintiff Michael McClurkin ("McClurkin") is an adult individual residing at 22 Circle Drive, Mechanicsburg, Cumberland County, Pennsylvania 17055. 2. Plaintiff William C. Shadow, Il ("Shadow") is an adult individual residing at P.O. Box 416, New Cumberland, Cumberland County, Pennsylvania 17070. 3. Defendant Joseph O. Kalwaytis is an adult individual, currently incarcerated at the Federal Prison Camp - AIlenwood with a mailing address of P.O. Box 1000, Montgomery, Pennsylvania 17752. 4. Defendant Renee E. Kalwaytis is an adult individual formerly residing at 24 Grandview Road, Hummelstown, Dauphin County, Pennsylvania 17036, but curremly living at 2473 Stutzmantown Road, Somerset, Somerset County, Pennsylvania 15501. 5. Defendants am husband and wife who, while acting in concert for their own personal benefit, held themselves out as operating a business under the fictitious name of KaiwayCo. 6. Defendant KalwayCo purports to be a partnership operated by its General Partner, Defendant Joseph O. Kalwaytis. 7. Defendant Renee E. Kalwaytis is described in KalwayCo marketing materials as serving as Assistant to the General Partner. 8. KalwayCo describes itself in its marketing materials as operating for the purpose of purchasing real estate and/or solid businesses at reasonable prices, then improving upon them and finalizing them for a profit. 9. On or about September 17, 1999, Plaintiff Shadow entered into a Private Equity Limited Paanership - Fund Agreement (the "Shadow Agreement") with Defendant KalwayCo in which Plaintiff paid $25,000.00 in exchange for a three (3) year limited partnership. A true and correct copy of the Agreement is attached hereto as Exhibit "A" and incorporated herein. 10. Pursuant to the Shadow Agreement, Plaintiff Shadow gave Defendants money so that Defendants could execute a deal to purchase a farm in Somerset County. Repayments were to be at $500.00 per month plus interest. 11. In order to induce Plaintiff Shadow to invest in KalwayCo, Plaintiff Shadow and Defendant Joseph O. Kalwaytis executed various documents, including a September 17, 1999 Judgment Note (the "Shadow Note") entitling Plaintiff Shadow to $25,000.00 upon demand. A tree and correct copy of the Note is attached hereto as Exhibit "B" and incorporated herein. 12. Defendants also induced Plaintiff Shadow to provide them with an additional $15,000.00 in order to prevent the real estate deal in Somerset County from falling. 2 13. Plaintiff Shadow met with Defendant Joseph O. Kalwaytis on September 17, 1999 and turned over the entire proceexls from Plaintiff Shadow's real estate sale, totaling $48,335.12, to Defendant Joseph O. Kalwaytis. 14. Under the guise of quickly converting Plaintiff Shadow's investment, Defendants actually had the proceeds of Plaintiff Shadow's real estate sale, totaling $48,335.12, converted to their own use. 15. Defendants, on or about March 30, 2000, executed a second Judgment Note (the "Second Shadow Note") entitling Plaintiff Shadow to $14,501.12 upon demand. A true and correct copy of the Second Note is attached hereto as Exhibit "C" and incorporated herein. 16. On or about December 8, 1999, Plaintiff McClurkin entered into a Private Equity Limited Partnership Agreement - Fund Agreement (the "McClurkin Agreement") with Defendant KalwayCo in which Plaintiff McClurkin paid $5,000.00 in exchange for a three (3) month limited partnership. A true and correct copy of the McClurkin Agreement is attached hereto as Exhibit "D" and incorporated herein. 17. Purusant to the McClurkin Agreement, PlaintiffMcClurkin invested his money upon receiving promises and assurances that his investment would be short term and generate a significant return. 18. In order to induce Plaintiff McClurkln to invest in KaiwayCo, Plaintiff McClurkin and Defendant Joseph O. Kalwaytis executed various documents, including a December 8, 1999 Judgment Note (the "McClurkin Note") entitling Plaintiff McClurkin to $5,000.00 upon demand. A true and correct copy of the McClurkin Note is attached hereto as Exhibit "E' and incorporated herein. 3 19. Defendants further induced Plaintiff McClurkin, on or about November 2, 2000, to provide Joseph O. Kaiwaytis with $3,000.00 for a period of one (1) week. 20. Defendants failed to repay Plaintiff McClurkin as promised and then executed a document, dated December 27, 2000, promising to repay the entire debt by January 5, 2001. A true and correct copy of the signed note is attached hereto as Exhibit "F" and incorporated herein. 21. Neitber Plaintiff Shadow nor PlaintiffMcClurkin have been repaid tbeir investments, plus promised returns, despite repeated requests. 22. Upon information and belief, in or about January 2001, Defendant Edward O. Kaiwaytis reported to federal prison for, inter alia, illegal check kiting activities. 23. Upon information and belief, Defendant Renee E. Kalwaytis is residing in the house upon the real estate Defendants purchased for their own benefit and gain with the funds belonging to Plaintiff Shadow and Plaintiff McClurkin. COUNT 1 - BREACH OF CONTRACT 24. The averments contained in Paragraphs One (1) through Twenty-Three (23) are hereby incorporated by reference as though fully set forth herein. 25. The agreements executed by and between Plaintiffs Shadow and McClurkin and Defendants, constituted valid contracts, pursuant to which Plaintiffs fully performed their obligations. 26. Defendants failed to honor the express terms of the Agreements they executed with Plaintiffs Shadow and McClurkin, thus breaching those Agreements. 4 27. Plaintiffs Shadow and McClurkin are owed by Defendants and Defendants are obligated to Plaintiffs Shadow and McClurkin in the amount of Fifty-Six Thousand, Three Hundred Thirty-Five Dollars and Twelve Cents ($56,335.12) plus expenses, attorney's fees and costs. WHEREFORE, Plaintiffs Shadow and McClurkin respectfully request that this Honorable Court award damages in their favor and against Defendants in the combined amount of Fifty-Six Thousand Three Hundred Thirty-Five Dollars and Twelve Cents ($56,335.12), $48,335.12 for Shadow and $8,000.00 for McClurkin, plus expenses, attorney's fees and costs, and such other relief as this Court deems just and equitable. COUNT !I - FRAUD 28. The averments contained in Paragraphs One (1) through Twenty-Seven (27) are hereby incorporated by reference as though fully set forth herein. 29. Defendants represented to Plaintiffs Shadow and McClurkin that their investments would be used to purchase distressed real estate that would, in turn, be sold for considerable profit within a short time after purchase. 30. Said representations were false. 31. Said representations were material to Plaintiff Shadow's and Plaintiff McClurkin's individual decisions to invest money with Defendants. 32. Said representations were made with knowledge of their falsity or, alternatively, were made recklessly by Defendants. 33. Said representations were made with the intent of inducing Plaintiffs Shadow and McClurkin into investing by relying thereon. 5 34. Plaintiffs Shadow and McClurldn justifiably relied upon Defendants' misrepresentations, Plaintiffs Shadow and McClurkin suffered monetary damages. WHEREFORE, Plaintiffs Shadow and McClurkin respectfully request that this Honorable Court award damages in their favor and against Defendants in the combined amount of Fifty-Six Thousand Three Hundred Thirty-Five Dollars and Twelve Cents ($56,335.12), $48,335.12 for Shadow and $8,000.00 for McClurkin, plus expenses, attorneys' fees and costs and punitive damages, and such other relief as this Court deems just and equitable. COUNT II! - CONSPIRACY 35. The averments contained in Paragraphs One through Thirty-Four (34) are hereby incorporated by reference as though fully set forth herein. 36. Defendants Joseph O. Kaiwaytis and Renee E. Kalwaytis, husband and wife, acted in concert and for their own personal gain, in inducing Plaintiffs Shadow and McClurkin to invest money in KalwayCo. 37. Defendants Joseph O. Kaiwaytis and Renee E. Kalwaytis, husband and wife, acted with malice when they induced Plaintiffs Shadow and McClurkin to invest money in KaiwayCo and then illegally used said funds for their own personal gain and benefit in breach of the contracts entered into with Plaintiffs. 38. As a direct and proximate result of Defendants' conspiracy, Plaintiffs Shadow and McClurldn have suffered monetary damages. WHEREFORE, Plaintiffs Shadow and McClurkin respectfully request that this Honorable Court award damages in its favor and against Defendants in the combined amount of Fifty-Six 6 Thousand Three Hundred Thirty-Five Dollars and Twelve Cents ($56,335.12), $48,335.12 for Shadow and $8,000.00 for McClurkin, plus expenses, attorneys' fees and costs and punitive damages, and such other relief as this Court deems just and equitable. Respectfully submitted, James J. Kutz, Esq. (~ (~ Attorney I.D. No. 21589 Robert A. Quigley, Esq. Attorney I.D. No. 79186 DUANE, MORRIS & I-IECKSCHER LLP 305 North Front Street, 5t~ Floor P.O. Box 1003 Harrisburg, PA 17108-1003 (717) 237-5500 Date: ~'",~fft~ ! Attorneys for Plaintiffs Michael McClurkin and William C. Shadow, H 7 Exhibit A PRIVATE EQUITY LIMITED PARTNERSHIP FUND AGREEMENT This agreement is made this ~'-/ day of~;' 1999 Between: KalwayCo A registered company in the State of Pennsylvanim and having a general partner - owner by the name of Joseph O. Kalwaytis 24 Grandview Rd. Hummelstown, PA 17036 (hereinaRer referred to as the Company) Individuals, with the following residence Whereas: The company and the individual are desirous of entering into an agreement for the following time and purpose. For the value received $'~,,~' ~ C) (~) C~, The company agrees to accept the individuals as a limited panner for a term of ~ fo months from the date of this agreement. The individuals may cancel this agreement aRer 4 months, with the balance due paid in full within 60 days, plus a prorated return.. The company also agrees to enter into a judgement for the full balance due against all property, assets, and anything the company holds. The judgement will be signed by the general partner, and become a part of this agreement. The company may use the funds as it sees fit, however the value is to be shown on a monthly statement--sent to the limited partner, to track his/her partnership value, and for tax purposes. The partuefs ownership share will be equal to, or pro rated as outlined above. This ownership is NOT transferable. This ownership can be canceled as outlined above. The purpose of this company is to purchase Real Estate, and/or solid businesses at reasonable prices, then improve on them and finance them at a profit. Any changes to this agreement by either party must he acceptable to both parties to become a part of this agreement. Signed at ~L) rv~v~,v~%'le:*,o~ ~O~thiS J~ .dayof~ 1999 JoseXl~ O. I~alwaytis General Patter and Owner of KalwayC There are NO fee~. The i~OfltS, if m~y, les after the limited pentlet is paid, is owned by the general pelTner. This agreement nmy be changed 1o meet any cun~at and farine state or fede~l requirements, when and if they. exist Exhibit B Judgement Note Ondemand, ~ ~er the ~ted Pm'tnarsh~p ~reement,~ I/~e prom~e to pay to CO;\\~-~k.~'~,~-~ .k~ their he~ s~ce~rs, or ~ign~ the ~11 ~t due ~m the L~it~ P~hip ~ment, ~th o~ dedication. ~ ~T~ I/We do h~by author~ and em~wer the P~ or ~y a~mey of~y co~ ofm~rd of P~ylvania or ei~whe~ to ap~ for end e~ judgement aga~st ~us ~r the a~ve sum, wi~ or ~ut d~atio~ with cost of suit, ~lea~ of~r~ ~thout stay of execution, ~d I~e he.by agree not to ~e ~y ~tion or ~y appli~tion w~tmever ~ ~y co~ for ~y ~uisition on ~y Real Estate t~t ~y ~ le~ u~n to ~llect the afo~id sm, ~ I~e ent~ ~id volun~ ~Me~tion u~n t~ Writ of Execution ~ ~her h~ ~ive ~d ~le~ all relief ~m ~y ~ all a~rai~ments, ~ay or exemption of~ws of~y State ~w ~ ~me or w~ch ~ ~ ~afier. W~VE~ In execut~g this ~te, ~e ~e~t~ the ~tio~ ~ ~o~gly ~ volunt~ily waive my/o~ ~ghts m ~ntest ~ ~ oft~s judgement ~a~ m~us ~ coup, ~ do he.by corm to t~ e~ry of this j~gement by co~e~ion. Commonwealth ,.Of Pennsylvania: County of Simu'l~hneously with the ~xecution of this Affidavit this ]3 day of,~n~999 I/We are signing and giving a judgement note in the amount of$~)~3C~ I ' Obligating our Real and Personal Estate as Colateral. Exhibit C Judgement Note % / "~. /2000 On de~, ~ ~ the L~t~ P~p Ag~e~nt, I~e pm~ to ~y to ~t' ~t'~ ~ C. ~~ he~ suc~es~m, or ~si~, t~ ~ ~t due ~m the L~ P~p A~. ~ out de~tion. ~ F~ l~e do ~ ant~ ~d em~wer the ~onot~ or ~y attom~ o[~y ~ of~o~ of P~yl~ or el~whe~ to a~ for ~ enter judgment ~a~ ~/us ~r the a~ve s~ ~th or ~hout d~tio~ ~th ~st of suit, ~le~ ore.rs, ~thout ~ay o[executio~ ~ l~e h~ ~e not to ~e ~y motion or ~y app~cation w~tme~r ~ ~y co~ for ~ ~uisition on ~y R~ Estate that ~y ~ le~ upon to ~B~t the a~id s~ ~d I~e ent~ ~ vol~ ~ond~tion u~n the Writ ofExecut~n ~d ~her h~by ~i~ ~ ~l~ ~l m~ef ~m ~y ~d ~ ap~ts, stay or exemption of~ of~y State now ~ ~ or w~ch ~ ~d ~a~. W~VE~ In e~ut~g t~s note, I/We ~erst~ t~ t~tio~ ~ ~gly ~d volubly waive my/o~ rights to contest the ent~ oft~s judge~t ~a~t ~/us ~ co~, ~d do he~ co~t to the en~ oft~ judge~t ~ co~ssion. Commonwealth Of Pennsylvania: County of Simultaneously with the execution of this Affidavit this day of__2000 I/We are signing and giving a judgement note in the amount of $ Obligating our Real and Personal Estate as Colateral. Exhibit PRIVATE EQUITY LIMITED PARTNERSHIP FUND AGREEMENT This agreement is made this y day of~l~ 1999 Between: KalwayCo A registered company in the State of Permsylvania, and having a general partner - owner by the name of$oseph O. Kalwaytis 24 Grandview Rd. Hummelstown, PA 17036 (hereinafter referred to as the Company) And: Individuals. with the follo&ing residence Whereas: ~h-e compah~' ~nd t~ ~n'divi~'l a~ desirous of entering into an agreement for the following time and purpose. For the value received $ ~ ~ ~ ~'~ . The company agrees to acc~t the individuals ~s a limited partner for a term of..~ months from the date of this agreement. The individuals m~y cancel this agreement a~er 4 months, with the balance due paid in full within 60 days, plus a prorated tatum.. The company also agrees to ~nt~r into a judgement for the full b~lance due against all prol~rty, assets, and anything the company holds. The judgement will be signed by the general partner, and become a part of this agreement. The company may use the fonds as it sees fit, however the value is to he shown on a monthly statement--sent to the limited partner, to track his/her partnership value, and for tax purposes. The partner's ownership share will be equal to. or pro rated as outlined above. This ownership is NOT transferable. This ownership can be canceled as outlined above. The purpose of this company is to purchase Real Estate, and/or solid businesses at reasonable prices, then improve on them and finance them at a profit. Any changes to this agreement by either party must be acceptable to both parties to become a part of this agreement. Signedat C ..~_~,~,x~ ~x~. this ~ dayof~999 Josel~. Kalwaytis G~neral Pm:t~F'~and Owner of KalwayCo There ~ NO fees. The profits, ifhtay, lett at'er the limited partner is paid, is owned by the general partner. This agreement may be changed to meet any current and future state or ti~deral requirements, when and if they exist. Exhibit E Judgement Note $ ~.':::~ ~-~ ,PA · ~-.. / ~L_~._/I 9 9 9 On demand, as per the Limited Partnership Agreement, iTWe l~pay to their heirs, successors, or assigns, the full amount due fi.om the Limited Partnership Agreement. with out defalcation. AND FURTHtiR. I/We do hereby authorize and empower the Prathonotary or any attorney of any court of record of Peunsylvania or elsewhere to appear for end enter judgement against me/us for the above sum, with or without declaration, with cost of suit, release of errors, without stay of execution, and I/We hereby agree not to make any motion or any application whatsoever in any court for any inquisition on any Real Estate that may be levied upon to collect the aforesaid sum, and I/We enter said voluntary. condemnation upon the Writ of Execution and further hereby waive and release all relief fi'om any and all appraisements, stay or exemption of laws ofany State now in force or which are passed hereaRer. WAIVER, In executing this note, I/We understand the transaction, and knowingly and voluntarily waive my/our rights to contest the entry of this judgement against me/us in court, and do hereby consent to the entry of this judgement by confession. Commonwealth Of Pennsylvania: County of ~,~~ Shnultaneously with tlte execution of this Affidavit this *'~ day of~_~,~1999 I/We are signing and giving a judgement note in the amount of$ ~ .~ ~ Obligating our Real and Personal Estate as Colateral. ~ Exhibit F VERIFICATION I, Michael McClurkin, hereby aver and state that I have read the foregoing Complaint which has been drafted by counsel. The factual statements contained therein are true and correct to the best of my knowledge, information and belief, although the language is that of counsel and, to the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in making this verification. This statement is made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unswom falsification to authorities, which provides that if I make knowingly false statements, I may be subject to criminal penalties. Michael McClurkin VERIFICATION I, William C. Shadow, II, hereby aver and state that I have read the foregoing Complaint which has been drafted by counsel. The factual statements contained therein are true and correct to the best of my knowledge, information and belief, although the language is that of counsel and. to the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in making this verification. This statement is made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unswom falsification to authorities, which provides that if I make knowingly false statements, I may be subject to criminal penalties. William C. Shadow, II SHERIFF'S RETURN - OUT OF COUNTY CASE NO,: 2001-03090 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MCCLURKIN MICHAEL ET AL VS KALWAYTIS JOSEPH O ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: KALWAYTIS JOSEPH 0 but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of LYCOMING County, Pennsylvania, to serve the within COMPLAINT & NOTICE On July 20th , 2001 , this office was in receipt of the attached return from LYCOMING Sheriff ' s Costs: So answers ~ ~ /~?'~ Out of County 9.00 Surcharge 10.00 R. omas Kline Dep Lycoming Co. 25.00 Sheriff of Cumberland County .00 62.00 07/20/2001 DUANE MORRIS & HECKLER Sworn and subscribed to before me 2g~' day of ~ this _2,,/ A.D. Prothon"ot r~y SHERIFF'S RETURN - OUT OF COUNTY CASE Ng: 2001-03090 P C~MMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MCCLURKIN MICHAEL ET AL VS KALWAYTIS JOSEPH 0 ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: KALWAYTIS RENEE E but was unable to locate Her in his bailiwick. He therefore deputized the sheriff of SOMERSET County, Pennsylvania, to serve the within COMPLAINT & NOTICE On July 20th , 2001 , this office was in receipt of the attached return from SOMERSET Sheriff's Costs: So answers Docketing 6.00 Out of County .00 Surcharge 10.00 R ' i Th e .00 Sheriff of Cumberland County .00 16.00 07/20/2001 DUANE MORRIS & HECKLER Sworn and subscribed to before me this ~ day of ~,~ ~w,~ ! A.D. / ~ Prothonota/~;t SHERIFF'S RETURN - OUT OF COUNTY C~.SE NQ: 2001-03090 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MCCLURKIN MICHAEL ET AL VS KALWAYTIS JOSEPH 0 ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: KALWAYCO but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of SOMERSET County, Pennsylvania, to serve the within COMPLAINT & NOTICE On July 20th , 2001 , this office was in receipt of the attached return from SOMERSET Sheriff's Costs: So ans~s Docket ing 6.00 Out of County .00 j.: Surcharge 10.00 R. Thomas Kline .00 Sheriff of Cumberland County .00 16.00 07/20/2001 DUANE MORRIS & HECKLER Sworn and subscribed to before me this ~ ~ ~-' day of A.D. Prothonoffa~y' In Th~ Court of Common Pleas of Cumberland County, Pen,,sylvania Michael McClurkin & William Shadow II Joseph ~al~%ytis No. 2001 3090 civil Now, May 23 ,20 01 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriffof LycomJ. nq County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. SheriffofCumberland County, PA Affidavit of Service Now, MAY 24, ,20 01 , at 2:43 o'clock p. M. served the within Notice and Complaint upon Joseph Kalwayt Is at Allenwood Federal Prison, RR#I, Montgomery, Pa., by handing to him oersonally a true and attested copy office original Notice and Complaint and made known to him tile contents thereof. So answers, Sheriff of LYCOMING County, PA BY: Timo thy COSTS B. Nelson, Deputy Sworn and subscribed before SERVICE $ 18.o0 methis 18 dayof JULY ,20 01 MILEAGE 4.50 ~( ~(~l'll, VI t/f)'~ ~'~ ~,~ ,~l . AFFIDAVIT 2.50  25.00 PAID. $ SHERIFF'S RETURN P~rsonally appeared before me ~,~_r.,/,~ ~_ _~-~. u deputy for CARL W. BRO~, Sh~ff of ~t ~n~, P~nsylv~i~ who ~g duly sworn ~ing ~ law, ~s ~d mys~ ~ ~ ~ ~ ~ve ~ p~m~ ~ ~llow~ ~ S~ on ~on ~l~g m ~r~n = ~ve ~ss; evid~ of ~ ~ Adult ~m~ of t~ ~'s household N~ RelaUon~ip ~lt in c~c of ~rs~'s N~o ~htion~ip ~nt or ~n at ~e ti~ ~d p[~ in ch~ge of ~ ~s~'s o~ce~ u~u~ pl~e of ~ ~ ~er~le& at ~e ~l~e ~ i~in~ in which ~ ~si~s - ~Oth~ N~ Tit~. of ~s~ most ~blic p~ of '~i~ si~ of ~on m ~ se~, at con~n~ the~f. ~ON N~ ~UND B~AUSE: W~bou= U~own. No - N~w ~d~ss Sworn and subscribed before me this ~ 1,~ +.bday of ./tJ A t 20/) f Dlff..FUTY SHERIFF SOMERSET COUNTY, PA ' k~. ~,~s., - Costs J Meli~.~A Trll_:.ll ~Jm,'L"~Publ!? In The Court of Common Pleas of Cumberland County, Pennsylvania Michael McClurkin and William Shadow II VS. Kalwayco No. 2001 3090 civil Now, M~_v 23 ,20 01, I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputLze the Sheriffof Somerset County to execute this WH~ this deputation being made at the request and risk of the Plaintiff. · fCumb~rland C-~ty, PA Affidavit of Service Now, ,20 , at o'clock __ M. served the within upon at by handing to a cop>' of the original and made known to the contents thereof. So anSWerS, Sheriffof Court%,, PA COSTS Sworn and subscribed before SERVICE $ me this __ day of ,20 MILEAGE AFFIDAVIT $ In The Court of Common Pleas of Cumberland County, Pennsylvania Michael McClurkin and William Shadow II Renee E. Kalwaytis No. 2001 3090 civil Now, May 23 ,20 01 , I, S~IERIFF OF CUNfBERLAND CODAVFY, PA, do hereby deputize the Sheriff of Somerset Co~nDJ ~ execute this Writ, this deputation being made at the request and risk of the Plaintiff. ~-. ~(~...~....~-_~.. Sheriff of Cumberland County, PA Affidavit of Service Now, ,20 , at o'clock __ M. served the within upon by handing to a copy of the original and made known to the contents thereof. So answcr$~ Sheriff of County, PA COSTS Sworn and subscribed before SERVICE $ me this __ day of ,20 MI1.EAGE AFFIDAVIT $ Docket Number ~'~ S~F'S ~RN ~Y ~P~ ~r~ ~ . ~ .... a ~ty r~ C*~ W. aao~,' ~ Count, P~ ~o ~ S~i~ on ~ ~A~lt ~ of the ~on's household N~ ~on~ip ~t ~ chic ~ ~r~n's msi~n~ N~e ~onship ~A~t or ~n at ~e ti~ ~d pl~ in c~ ~ ~ ~*s o~ ~ usual pl~ of ~n~s ~la6~hip ~ M~I~ at ~e pl~e of I~g~g in which ~n ~si~s - ~O~ N~ ~tle ~ Pos~ m~blic pm of ~i~ sim~ of co~on at ~sid~, of ~on ~ ~ se~ at IN ~0~ ~ORO ~d m~ng ~o~ to ~h ~nten~ the~of. ~ON N~ ~UND BECAUSE: - New ~ss ~ Other !~,~ day of , f.~ t_A. _ 20o! DId. PUTY SHERIFF SOMERSET COUNTY, PA